Ports/Terminals:BURNABY OIL

Rhys Dovey and Suzie Chambers

Kinder Morgan owns the TransMountain pipeline which runs from Edmonton, Alberta to Burnaby, British Columbia (see Kinder Morgan Pipeline). The Burnaby Terminal has been around for 62 years and serves TransMountain and other sub-pipelines such as the Chevron Burnaby pipeline and Westridge Marine Pipeline. Kinder Morgan has recently become the fourth top energy company in Canada. The company’s safety violations has led the city of Burnaby to oppose the expansion of the TransMountain Pipeline from a single to double pipeline.

History of the Kinder Morgan Company and Burnaby Terminal

Kinder Morgan was founded by Richard Kinder with the help of his colleague William Morgan. Together they bought the Enron Pipeline Company and renamed it the Kinder Morgan Company. The TransMountain Pipeline has been in Operation since 1953. The Pipeline distributes oil and other resources to the Chevron Burnaby and Westridge Marine Terminals. It pumps about 300,000 barrels a day to the different sub-pipelines. Burnaby has approxmimatey 220,000 residents. Mayor Derek Corrigan strongly opposed the planned expansion of the pipeline for environmental and public safety concerns.

Safety Concerns

The Kinder Morgan company has come under fire because it has a poor track record with inspection and maintenance of the TransMountain Pipeline, which has had several spills in the last ten years. According to Burnaby Now, the chief of the Fire Department has raised concerns of the pipeline being too close to suburban and residential neighborhoods. Kinder Morgan wants to expand the terminal from 13 to 26 tanks on the mountain side of Burnaby. Along with the plan of adding tanks, the company wants to triple the capacity of the pipeline by adding a second line that would run between Edmonton and Burnaby. The tankers are close to the waterways that lead to major rivers and lakes, which put fish and downstream wildlife at risk from another major spill. A 2007 spill caused problems for the areas that were affected by the spill, but the company continued with their pipeline projects. About 45% of the oil spills were due to leaks, or due to faulty infrastructures and maintenance. The Pipeline and Hazardous Materials Safety Administration has cited, at least five times in 2011, the Kinder Morgan Company for poor safety and maintenance of the pipelines. In 2013, the company decided it would continue with the low maintenance. This decision made the citizens and mayor of Burnaby to start taking a stand against the company and the future plans to triple the capacity of the TransMountain Pipeline.

Burnaby, Kinder Morgan, and Trudeau

The citizens of Burnaby, fed up with how their voices were not being heard by Kinder Morgan Company or the NEB, organized a rally. The mayor put his own job on the line by supporting his citizens. The protesters on Burnaby Mountain stopped the crew that were cutting trees to make room for the new oil tanks to be built. The multi-day standoff in fall 2014 resulted in protesters being arrested. The protests continued despite a court's order to stop interfering with the work.

The NEB approval did not stop the protesters who continued to protest against the Kinder Morgan Company and pressure the new Liberal government of Prime Minister Justin Trudeau (Ausick). Although Trudeau has opposed the Northern Gateway pipleine in northern B.C., he has been far quieter on the Kinder Morgan Trans Mountain Pipeline. According to a senior Liberal MP, Ralph Goodale, the party is focused on reforming the NEB before any more pipeline proposals are officially considered. The former Natural Resources Minister said that the approval process "clearly depends on the outcome of a credible process and clearly there is a question of mistrust."

Trudeau himself traveled to the US in support of the Keystone pipeline, and has noted specifically that he supports pipelines stretching to Canada's East Coast, with no major mountains to worry about. The Liberals in Canada are a centrist party, and Trudeau maintains that "it's important that we get our resources to market, but it's also important that we understand that it's not just up to governments to grant permits anymore. We have to get communities to grant permission and that's something that we need to spend more time focusing on" (Laanela).

The TransMountain Pipeline remains yet another "very different proposal" all its own, and clearly a very ambiguous one. The Canadian Parliament passed a moratorium on crude oil tanker traffic off the northern coast of British Columbia in 2010, and Trudeau has promised to enforce it. He has demonstrated at multiple turns that he will take the environmental lobby very seriously at his table, but the commitment to political centrism and sensitivity to business interests leaves the TransMountain question crucially unanswered. Former Natural Resources Minister Goodale went on to say that "earning that market access means earning the social license," meaning that the concerns of local communities are being legitimately considered by government officials in the management of this issue.

However, Burnaby Mayor Derek Corrigan is clearly concerned about his community's "social license," lamenting that "the Liberal position on the issue has been like trying to nail Jell-O to the wall." His town is on the receiving end of the highly contentious TransMountain Pipeline expansion project, so the opposition to it still has much work to do (Laanela). The Kinder Morgan Company is still trying to negotiate with Burnaby residents because it needs port access to continue with the expansion of the pipeline and tanks. Local activism has killed Shell’s prospects which has put the Tar Sands expansion at risk.

Why Burnaby has Opposed the Pipeline

Residents of the city of Burnaby, British Columbia love their pristine coastal home, one of a shrinking number of places with open, natural coastline and wooded areas in this part of the BC coast. The nearby town of Richmond already has a heavily industrialized port, as the Port-Metro Vancouver economic zone looks to expand into a rapidly globalizing economy centred on Chinese exports.

The Burnaby situation is still very much an incomplete story. As the energy industry consolidated its interest around the rapidly expanding tar sands project and its associated pipeline networks, a civil resistance movement consolidated alongside it. This citizens’ grassroots movement expressed a strong showing of solidarity, as local First Nations allied with the group calling itself Burnaby Residents Opposing Kinder-Morgan Expansion (BROKE). While the main story took the form of a legal battle between the city of Burnaby and the US oil infrastructure company Kinder Morgan, the climax came in the form of a month-long showdown in the dead of winter between Kinder Morgan surveyors and BROKE protesters. This resulted in a tactical victory for the citizens, but the larger struggle has proven far more obstinate.

The residents of Burnaby are aggravated by the fact that this US oil giant is building its enterprise through their community, by building an expansion to its existing Trans-Mountain Pipeline (TMPL). But before we get into the details of this dispute between the company and the community, it is worth identifying precisely what kind of company Kinder Morgan is. According to information from the “about us” page of its own website, Kinder Morgan is the largest energy infrastructure company on this continent. Richard Kinder, the principal founder and CEO, began his career as a lawyer for none other than Enron Corporation, the infamous purveyor of “mark-to-market” accounting tricks that enabled the company to offset its financial losses to fictitious subsidiary organizations that only existed on paper. Not only did Mr. Kinder serve early on as a legal consultant to this legally shady company, he was also a longtime personal friend of its founder and CEO, Ken Lay—the man who conveniently “died” right before he was to be convicted of fraud for his company’s malfeasance in 2006.

Fortunately for Mr. Kinder, he left Enron ten years before Lay’s death put the final nail in the company’s coffin. In 1996, Kinder partnered with fellow Enron associate, William Morgan, and together they purchased a branch of Enron Corporation dealing in natural gas—Enron Liquids Pipeline, L.C. After the buyout, they began anew as Kinder Morgan Energy Partners in the following year. The newer company has since grown quickly into a multi-billion-dollar enterprise. While it may have been born in Houston, the oil baron capital of North America, almost directly from the ashes of Enron, Kinder Morgan has nonetheless managed to survive—but the business priorities of a poorly regulated industry has followed it like a lost dog, perhaps a rabid one.

The Houston-based company was called out by none other than the leading insider of capital industry, The Wall Street Journal, for “scrimping” on its maintenance spending, to increase financial returns to its shareholders. In 2013, the Journal reported that a pipeline safety review organization, Hedgeye Risk Management, concluded that Kinder Morgan’s “high-level business strategy is to starve its pipelines and related infrastructure of routine maintenance spending in order to maximize distributable cash flow.” This was part of a scheme to increase returns to Kinder Morgan’s holding company in a legal, but unethical and very shady manipulation of finances, which is similar to the description of Enron’s practice—except for the part about legality.

The Pipeline and Hazardous Materials Safety Administration (PHMSA) further reported at least five maintenance violations in the year 2011 alone, which resulted in 45% of all of Kinder Morgan’s gas leaks, in following with the above claim by Hedgeye. The company failed to monitor the corrosion of pipes, which was responsible for 16.8% of its leaks. Evidently, Kinder Morgan is no better than the industry legacy it has inherited. More to the point, in 1953 the company completed a pipeline from the oil fields of Alberta, in Canada’s heartland. It was called the Trans-Mountain Pipeline, so named because it pumps approximately 300,000 barrels of oil per day through the Rocky Mountains, into Canada’s rugged western coast.

The oil market has been through many successive shake-ups over the past 40 years or so, particularly with regard to political volatility in Central Eurasia and an emerging green economy. As a result, new developments in oil drilling are increasingly relied on to prop up such businesses as Kinder Morgan. Hydraulic fracturing has become a popular method, harvesting whatever fumes can be salvaged from rocks while the supply of crude remains volatile.

With this very recent advent of so-called “fracking” as a major industry in the Midwest, companies like Kinder Morgan have opened a new range of possibilities for profit. As oil supply from shale expands, so does the infrastructure required to ship it. The company wants to triple the TMPL’s capacity to about 890,000 barrels per day. Heck, I say why not just raise the pipe pressure a bit to make it an even 900,000? (As a quick side note, the measurement of “barrel” is an unspecified unit, originating as an industry standard with no common international consensus as to its exact dimensions. The general agreement of its volume is 159 litres, or 42 US gallons.)

The greater Vancouver metropolitan area is one of the most scenic urban settings anywhere. We are very lucky to live where we do, in this bioregion, having one of the densest and most diverse ecology in North America. Not to mention the resilience of Indigenous communities here, compared to areas further east. It comes as no surprise that virtually the entire Burnaby community is vehemently against the expansion of oil shipments in its area.

With a proven track record of faulty pipes and a “scrimpy” maintenance budget, Kinder Morgan is not what the community wanted at all. Crucially, PHMSA reported in 2009 that the company had built a pipeline too close to a “high-consequence area,” meaning too close to housing, a hospital, road, school, etc. It was for this reason that the company wanted to burrow its pipeline through the Burnaby Mountain nature preserve, rather than around it, since the latter option would have meant building close to residential areas. These circumstances triggered a significant confrontation between members of the local community, and Kinder Morgan surveyors.

How Burnaby has Opposed the Pipeline

In November of 2014, after protests escalated in proportion to the course of pipeline development, Kinder Morgan sent its survey team up the mountain to gather “geotechnical information” to be provided to the Canadian National Energy Board (NEB) as a requirement for government approval of the project. The surveyors were going to drill two boreholes 200 metres into the mountain to test the rocks. To make a long story short, they only managed to drill one hole.

Kinder Morgan was attempting to drill through unceded tribal territory of the Musqueam, Squamish, Sto:lo, and Tseil-Waututh bands. These First Nations were not consulted by the company, or by Canada’s Conservative government, prior to the exploratory drilling. While Kinder Morgan claimed that the drilling was in response to the community’s desire to have the pipeline rerouted, and that this stemmed from a process of consultation, the community adamantly rejected the claim. These issues facilitated solidarity of indigenous and post-settler communities.

The residents of Burnaby formed the BROKE organization. Community solidarity is always great, but what really made this a monumental protest action was the cross-cultural interaction with First Nations, The Idle No More movement had earlier been galvanized in reaction to Stephen Harper’s Conservative government passing omnibus bill C-45, which severely limited Indigenous rights to land, as well as self-determination. Indigenous solidarity protests occurred all over the world, particularly in Canada, and the TMPL situation escalated in the immediate wake of these events—very poor timing on Kinder Morgan’s part.

In September of 2014, Kinder Morgan employees commenced their survey work by cutting down 13 trees in the Burnaby Mountain refuge, in violation of municipal laws protecting the conservation zone. In response, a blockade was set up by the citizens’ group. It was clear from the beginning that a wide diversity of views was represented. According to an article in the Vancouver Sun:“there is a diverse group of protesters on the mountain, including one person who chained himself to a work vehicle. Activists are opposed to transporting oil because a pipeline spill could cause irreparable environmental damage and they are concerned about how the Alberta oilsands are contributing to climate change. First Nations with claim to the land say they aren’t being respected and haven’t been consulted on the project.”

Unable to ignore the voice of protest any longer, Kinder Morgan took legal action, filing for an injunction with BC’s highest court. Justice Austin Cullen sided with the company, finding that the activists used bullhorns “improperly,” and that they also used aggressive language, all of which prevented Kinder Morgan from fulfilling a legal obligation. Interestingly, the city of Burnaby itself, as well as the residents involved in the civic action, contended that their municipal laws were violated by the company’s presence.

Yet still Justice Cullen Saw in favour of Kinder Morgan. Protesters were ordered to evacuate on November 17th, and when the orders were ignored, the RCMP moved in to make swift arrests. But that was not the end of this battle. Not only did protesters continue the blockade, but there was also a “round two” in court. The injunction was set to expire on the first of December, but there was one small problem: the wrong GPS coordinates were given for the injunction zone. Despite this, Kinder Morgan’s agents were confident enough to request an extension of the order to December 12th. A different judge completely turned the tables and found in favour of the BROKE protesters. The judge insisted all civil contempt proceedings against the citizens be totally dropped. This was a huge turn of events, and a major victory for the community.

That reversal happened on November 28th, a little more than a week after the first trial. The previous day, one very important arrest was made: Grand Chief Stweart Phillip of the Union of BC Indian Chiefs was taken into custody for willingly stepping over a police line. According to the CBC national news agency, “Phillip said he supported Burnaby Mayor Derek Corrigan in his stand against the company’s exploration on the mountain, adding that this would be the first time in Canadian history a local government bylaw would have been overruled on a land use issue. "If push comes to shove," Phillip said, "I’d be arrested in solidarity."”

The expression of solidarity was clear from the start. All Indigenous groups involved have expressed support for Mayor Corrigan, who has really led this fight, so much so that it has practically come to define his career. This cross-cultural action was vital in getting the injunction reversed, and the result was Kinder Morgan’s legal right to the land being revoked. They were forced to remove all equipment by December 1st, 2014, and were unable to finish their project. Although a spokesperson for the company said they had received enough information from the one bore hole that was completed, even still, the fact remains that they sought an extension to complete their work, and when this effort failed, they packed up and went home.

Solidarity worked, that is the moral of this story. But we live in complicated times where these kind of stories do not always end at the happy part. After the mountain was cleared, protesters began occupying the port terminal—Westridge Marine—where the proposed new pipeline was slated to end. This was more of an after-action security measure. The real conflict moved from the front lines on the Mountain to the courtrooms soon after that.

One year can make a world of difference, and on the anniversary of the 2014 direct action, yet another BC Supreme Court judge re-reversed the course of the TMPL-BROKE conflict. The judge said, “It would be unworkable to take away from the NEB the power to order the engineering feasibility work by giving to a provincial entity a veto power over whether and how such work could take place,” and added, with unintended irony, “virtually no pipeline could ever be built.” This judge disregarded the fact that these legal efforts represent the Burnaby community’s express desire that no pipeline will ever be built.

On November 25th, 2015, the B.C. Supreme Court ruled that the final decisions about the pipeline were to be made by the NEB (National Energy Board). In May 2016, the National Energy Board issued a report recommending that the government approve the Trans Mountain Expansion Project, subject to 157 conditions (National Energy Board).